093_HB0563enr HB0563 Enrolled LRB093 05561 MBS 05653 b 1 AN ACT in relation to criminal law. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. If and only if House Bill 2526 of the 93rd 5 General Assembly becomes law, the Code of Criminal Procedure 6 of 1963 is amended by changing Section 115-10.2 as follows: 7 (725 ILCS 5/115-10.2) 8 Sec. 115-10.2. Admissibility of prior statements when 9 witness refused to testify despite a court order to testify. 10 (a) A statement not specifically covered by any other 11 hearsay exception but having equivalent circumstantial 12 guarantees of trustworthiness, is not excluded by the hearsay 13 rule if the declarant is unavailable as defined in subsection 14 (c) and if the court determines that: 15 (1) the statement is offered as evidence of a 16 material fact; and 17 (2) the statement is more probative on the point 18 for which it is offered than any other evidence which the 19 proponent can procure through reasonable efforts; and 20 (3) the general purposes of this Section and the 21 interests of justice will best be served by admission of 22 the statement into evidence. 23 (b) A statement may not be admitted under this exception 24 unless the proponent of it makes known to the adverse party 25 sufficiently in advance of the trial or hearing to provide 26 the adverse party with a fair opportunity to prepare to meet 27 it, the proponent's intention to offer the statement, and the 28 particulars of the statement, including the name and address 29 of the declarant. 30 (c) Unavailability as a witness is limited to the 31 situation in which the declarant persists in refusing to HB0563 Enrolled -2- LRB093 05561 MBS 05653 b 1 testify concerning the subject matter of the declarant's 2 statement despite an order of the court to do so. 3Unavailability as a witness includes circumstances in which4the declarant:5(1) is exempted by ruling of the court on the6ground of privilege from testifying concerning the7subject matter of the declarant's statement; or8(2) persists in refusing to testify concerning the9subject matter of the declarant's statement despite an10order of the court to do so; or11(3) testifies to a lack of memory of the subject12matter of the declarant's statement; or13(4) is unable to be present or to testify at the14hearing because of health or then existing physical or15mental illness or infirmity; or16(5) is absent from the hearing and the proponent of17the statement has been unable to procure the declarant's18attendance by process or other reasonable means; or19(6) is a crime victim as defined in Section 3 of20the Rights of Crime Victims and Witnesses Act and the21failure of the declarant to testify is caused by the22defendant's intimidation of the declarant as defined in23Section 12-6 of the Criminal Code of 1961.24 (d) A declarant is not unavailable as a witness if 25 exemption, refusal, claim or lack of memory, inability or 26 absence is due to the procurement or wrongdoing of the 27 proponent of a statement for purpose of preventing the 28 witness from attending or testifying. 29 (e) Nothing in this Section shall render a prior 30 statement inadmissible for purposes of impeachment because 31 the statement was not recorded or otherwise fails to meet the 32 criteria set forth in this Section. 33 (Source: P.A. 89-689, eff. 12-31-96; 93HB2526enrolled.) HB0563 Enrolled -3- LRB093 05561 MBS 05653 b 1 Section 10. The Code of Criminal Procedure of 1963 is 2 amended by adding Section 115-10.2a as follows: 3 (725 ILCS 5/115-10.2a new) 4 Sec. 115-10.2a. Admissibility of prior statements in 5 domestic violence prosecutions when the witness is 6 unavailable to testify. 7 (a) In a domestic violence prosecution, a statement, 8 made by an individual identified in Section 201 of the 9 Illinois Domestic Violence Act of 1986 as a person protected 10 by that Act, that is not specifically covered by any other 11 hearsay exception but having equivalent circumstantial 12 guarantees of trustworthiness, is not excluded by the hearsay 13 rule if the declarant is identified as unavailable as defined 14 in subsection (c) and if the court determines that: 15 (1) the statement is offered as evidence of a 16 material fact; and 17 (2) the statement is more probative on the 18 point for which it is offered than any other evidence 19 which the proponent can procure through reasonable 20 efforts; and 21 (3) the general purposes of this Section and 22 the interests of justice will best be served by admission 23 of the statement into evidence. 24 (b) A statement may not be admitted under this exception 25 unless the proponent of it makes known to the adverse party 26 sufficiently in advance of the trial or hearing to provide 27 the adverse party with a fair opportunity to prepare to meet 28 it, the proponent's intention to offer the statement, and the 29 particulars of the statement, including the name and address 30 of the declarant. 31 (c) Unavailability as a witness includes circumstances 32 in which the declarant: 33 (1) is exempted by ruling of the court on the HB0563 Enrolled -4- LRB093 05561 MBS 05653 b 1 ground of privilege from testifying concerning the 2 subject matter of the declarant's statement; or 3 (2) persists in refusing to testify concerning the 4 subject matter of the declarant's statement despite an 5 order of the court to do so; or 6 (3) testifies to a lack of memory of the subject 7 matter of the declarant's statement; or 8 (4) is unable to be present or to testify at the 9 hearing because of health or then existing physical or 10 mental illness or infirmity; or 11 (5) is absent from the hearing and the proponent of 12 the statement has been unable to procure the declarant's 13 attendance by process or other reasonable means; or 14 (6) is a crime victim as defined in Section 3 of 15 the Rights of Crime Victims and Witnesses Act and the 16 failure of the declarant to testify is caused by the 17 defendant's intimidation of the declarant as defined in 18 Section 12-6 of the Criminal Code of 1961. 19 (d) A declarant is not unavailable as a witness if 20 exemption, refusal, claim of lack of memory, inability, or 21 absence is due to the procurement or wrongdoing of the 22 proponent of a statement for purpose of preventing the 23 witness from attending or testifying. 24 (e) Nothing in this Section shall render a prior 25 statement inadmissible for purposes of impeachment because 26 the statement was not recorded or otherwise fails to meet the 27 criteria set forth in this Section. 28 Section 99. Effective date. This Act takes effect upon 29 becoming law.